Rockefeller says big tech companies acting like Standard Oil — Senator Jay Rockefeller (D-WV), whose great-grandfather founded Standard Oil — broken up by the Supreme Court in 1911 — had strong words for tech companies like Apple, Google, and Facebook. Among other things, according to the Hill, “he said the instinct to build anti-competitive monopolies is ‘alive and well in the United States … with a lot of these big computer companies.'”

The New Busking — Musician Terre Roche offers a few words of caution to the “new business model” hype. “I was thrilled as first-responders offered up their credit card numbers to a strange Web site in order to show me that they cared. It seemed like a huge improvement over the days when I sat in record company boardrooms with “product managers” who’d been assigned to give me a “makeover” as a last resort before dropping me from their labels.”

In Plain English: The Trans Pacific Partnership (TPP) — The Copyright Alliance presents a guest post from law student Joan Blazich on the trade agreement currently being negotiated between the US and ten other nations. A great introduction with more to follow soon.

Interview With David Lowery of Cracker — Chris Castle interviews Lowery in the aftermath of his super-viral letter to Emily. “Until now the debate has always been Record Labels vs. The Technology Industry. Meanwhile the artists have been caught in the crossfire. We set out with The Trichordist to re-frame the debate about artist’s rights. We figured it was a five-year project. We got lucky this week. It’s still a five-year project.”

A Brief History of Artists’ Control of Their Product — Speaking of Trichordist, if you aren’t already reading it, I highly recommend it. Here, Jonathan Segel (solo instrumentalist and fellow bandmate of Lowery in Camper van Beethoven) lays out a detailed look at the rise of the “recording” industry, beginning with the “recording” of music on paper. Great stuff: ” I see this as a hypocrisy: either music has no value at all, (in which case why copy it to begin with?), or it has value and the copiers are refusing to admit that it does, simply because it is a copy.” Also check out Bob Regan’s post, Breaking News!! Band Embraces New Technology and Business model. Touring? T-shirts? Regan was doing that in ’77.

Moving On… — I highly recommend subscribing to Chris Ruen’s blog or following him on twitter. He has a book coming out in the Fall that promises to contribute greatly to copyright debates. Says Ruen, “In academia and new media, a handful of voices have made their names on the novelty of their own contrarianism in this regard. They tell us artists can succeed…by being more desperate for support. They tell us that creators’ legal rights are artificial…while other citizens’ legal rights are not. They seduce our lazy quest for instant gratification by rocking our good nature to sleep, purring that exploitation is really ‘sharing’ and crime is protected ‘free speech.’ And they tell us that technology is too powerful to fight anyway. We have no agency in regards to digital technology. It’s a brave new world. Truly. The survival of the festering wound is in the interest of these contrarians. Without it they would receive little publicity. They would need a new beat or a new job.”

Changing copyright laws won’t solve everything — Helienne Lindvall reports on the “copyleft math” put to use by the UK’s Vince Cable regarding implementing that country’s Hargreaves Report. For example, according to the IPO, the proposed parody exemption would result in a £600m growth per year; quite astonishing in a country where the total value of the music industry is estimated “to be around £1.33bn.”

NMPA Inks Deal With Universal Music Group Over VEVO, YouTube Videos — Songwriters and music publishers will now get a cut of ad revenues from online music videos. According to Billboard: “The NMPA termed the agreement, which covers North America, a groundbreaking model licensing deal because it will allow songwriters and music publishers to share in revenue from music videos. Up until now, while Youtube and VEVO were making money on their ad-supported services, indie music publishers had not shared in that revenue because the major labels long considered videos as promotional tools and never paid for licensing the songs used in the videos.”

Google moves to snuff sites that rip music from YouTube videos — PaidContent reports: “The company’s move against YouTube-Mp3 comes at the same time that it is spending hundreds of millions of dollars on partnerships to create new YouTube channels that will offer original programming. Google may thus be seeking to protect its investment and reassure its partners that it can control the new distribution environment. Or the dispute may signal a more permanent shift in which Google begins to adopt the outlook of a copyright owner.” Chris Castle has another take: “Always be wary of anything from the tech press that begins ‘the free ride may be ending’ because that is never true.”

German Court’s Verdict in Kino.to Case Supports an Internet that Works for Everyone — The MPAA offers its take on the recent conviction of the ringleader of a major German streaming portal. Said the Association, the decision “paves the way for an internet that works for everyone by clearly recognizing that those who illegally distribute content are not in business for the greater good. The Kino.tv business model worked for its operators who made millions from ads but not for viewers whose privacy was compromised and not for the many thousands of creators and makers whose content was made available for free, denying them the value of their hard work and of the economic incentive to keep creating and making it.”

Why Can’t We Be Friends? — Sandra Aistars reflects on the future of conversation in a post-SOPA world. “We all want the internet to mirror the kind of society we profess to be. One that allows us to gather and exchange thoughts online, one that supports democracy and does not threaten others with exploitation, whether they be the unwary misled by scams, children and women exploited for the pleasure of others, or artists and creators who we neglect to compensate for their work. Just as a vibrant, open and free society cannot exist without empathy for our fellow travelers and mutual respect for basic rights and privileges, so too a healthy internet society must accept basic rules of the road.”

Pixar Story Rules (One Version) — A collection of tweets from Pixar story artist Emma Coats that provide a great set of tips for writers of all stripes. Example: “#11: Putting it on paper lets you start fixing it. If it stays in your head, a perfect idea, you’ll never share it with anyone.”

Not Free, Not Easy, Not Trivial — The Warehousing and Delivery of Digital Goods — Kent Anderson at the Scholarly Kitchen points out, contrary to some assertions, that digital goods have costs. “Even beyond just their power requirements, digital goods have particular traits that make them difficult to store effectively, challenging to distribute well, and much more effective when handled by paid professionals.”

All the World’s a Stage (For Suits Against YouTube) — Future of Music Coalition reviews recent lawsuits involving YouTube’s potential copyright liability in the US, France, Germany, and Italy. The Coalition also notes, “While sovereign nations undoubtedly have the right to create and interpret the laws of their land as they please, the various international lawsuits against YouTube serves a case study in why international harmonization of copyright and trademark laws has become increasingly important in recent years.”

Whatever happened to the YouTube killers? — GigaOm reports on the “growing number of web video ventures that once set out to compete with YouTube but never came close. Some of them had to shut down, others changed hands. Some are trying their luck at a new direction while others seem stuck: forgotten but never taken offline.”

Warez Download Site OneDDL Calls It Quits Citing Legal Concerns — Also shutting down, another cyberlocker. “‘The legality of websites, such as ours, has always been a rather grey area. I had believed that this ambiguity would work to our advantage and originally, that is what lawyers told us (yes, we went to see lawyers),’ says the site owner. ‘Lately however, the landscape has changed, and it appears the grey is gradually becoming black and white, unfortunately not in our favour.'”

Amazon’s markup of digital delivery to indie authors is ~129,000% — Meet the new boss, same as the old boss. Author Andrew Hyde discovers that Amazon takes a 30% cut when it sells e-books through its site AND a healthy delivery fee (totalling nearly 50% of the list price). In a follow-up piece, Hyde reports that after compressing and resubmitting his manuscript, he was able to bring Amazon’s total cut down to 36%, but also notes that his buyers easily switched to other outlets. “The argument against … is that Amazon drives sales, which indie authors are finding out, isn’t the case. Your readers drive your future sales.”

But if there’s one encouraging aspect from this story (besides the generous donations made to two charities), it’s the growing awareness that copyright issues are not so reducible to such binary thinking. Consider the following popular comments on one of the Reddit posts for this story. The first is currently the top comment on the site:

banksey18182 —
I just wish Reddit would take more time to realize that rehosting images like this actually does hurt the original content creators.
Sure we go all out and harp about “Linking to the Source” . . . etc. etc. . . but the truth is that anything linking to a source will only get a fraction of the traffic that original submission will receive.

Next is a response to user Roflzilla, who wondered, “I am curious what Funnyjunk’s side of it [is] though.”

suddenly_ponies —
There IS no other side. Sites like Funnyjunk, memebase, and, yes, even Reddit profit greatly from the theft of art and other great things. Youtube managed to turn it around and share the profit thus making nice with everyone (users and content providers), but they too were built on theft while hiding behind the myth that it’s hard to police content.

The following includes two responses:

vitto2point0 —
You do know that imgur operates the same way that funnyjunk does right? And you all post deviant art, SMBC, XKCD etc on there then to reddit where imgur makes bazillions in profit and nothing for the artists… Yet you seem to give a shit now?

Great point… Maybe more people will realize what goes on and this is the straw that broke the camel’s back. Hopefully people that do see that this happened + the comments and be a little bit more mindful about what they post online.

I’m guilty of putting stuff on DA but I’m glad I haven’t done it in awhile. Even websites like shutterfly do the same thing. You upload a photo, they make money on you buying shit from them. Bastards.

They give a shit when it’s someone they like but when it comes to piracy or other copyright infringement they make posts about excercising their natural right to download anything they like

Finally, an exchange that is short and to the point:

eatme547
Is having a user upload the Oatmeal’s material to FunnyJunk and FJ making money off of the advertisement different from having a user “upload” (insert content here) on to the PirateBay and PB making money off of the advertisement?

In it, Smith challenges the prevailing view of property as a “bundle of rights,” criticizing it as not offering a complete theory of property law. What I found interesting is how Smith at several times notes that much of property law is centered around the concept of “exclusion” — if something is considered yours, you can prevent others from using it.

Property has purposes and employs various means to serve them. The purposes of property relate to our interest in using things. Desirable features of a system of property — stability, promotion of investment, autonomy, efficiency, fairness — relate to the interest in use. There is no interest in exclusion per se. Instead, exclusion strategies, including the right to exclude, serve the interest in use; by enjoying the right to exclude through torts like trespass, an owner can pursue her interest in a wide range of uses that usually need not be legally specified.

The “right to say no” is central to property law, but it is not the goal of property law. This is, perhaps, an obvious point, but, as Smith explains, it causes much confusion when we think about the means and ends of property:

The architecture of property emerges from the process of solving the problem of how to serve use interests in a roughly cost-effective way. In modern societies, the solution usually involves first the application of a use-neutral exclusion strategy, and then refinement through contracts, regulations, common law doctrine, and norms. Exclusion is at the core of this architecture because it is a default, a convenient starting point. Exclusion is not the most important or “core” value because it is not a value at all. Thinking that exclusion is a value usually reflects the confusion of means and ends in property law: exclusion is a rough first cut — and only that — at serving the purposes of property. It is true that exclusion piggybacks on the everyday morality of “thou shalt not steal,” whereas governance reflects a more refined Golden-Rule, “do unto others” type of morality in more personal contexts. It may be the case that our morality itself is shaped to a certain extent by the ease with which it can be communicated and enforced in more impersonal settings. I leave that question for another day. But the point here is that the exclusion-governance architecture is compatible with a wide range of purposes for property.

The same is true for copyright law. At its heart, copyright law secures exclusive rights to creators of original expressive works: the right to copy and distribute, the right to publicly perform and display, and the right to make derivative works. Though some commentators grow squicky at the mention of “property talk” in copyright discussions, 1For example: Bill Patry, Copyright and the Why of Property Talk (2009); Steve Collins, ‘Property Talk’ and the Revival of Blackstonian Copyright (2006); Siva Vaidhyanathan, Copyrights and Copywrongs, pg 11-15 (2001). the exclusive right of an author to copy her work is functionally the same as the exclusive right of a landowner to occupy her land or the exclusive right of a property owner to possess whatever the thing may be.

The confusion Smith refers to, over exclusion as a value, is very much present in copyright discussions. Many suggest that “relying on copyright” is the same as “preserving outdated business models.” What use is copyright if, for example, creators can raise funds on Kickstarter, or release their work online freely and seek remuneration through ancillary avenues?

These are valid choices for any creator, but it is vital to remember that they remain just that: the creator’s choice. Those values Smith refers to — “stability, promotion of investment, autonomy, efficiency, fairness” — are served by this. The “right to say no” that copyright secures is merely shorthand for ensuring a meaningful “right to say yes” to uses that are valuable to both the creator and the general public. To say that new business models refute the need for copyright is to confuse exclusion as a framework for furthering copyright’s goals with exclusion as a value in and of itself.

That’s not to say “exclusion” is the be all and end all of any property system. As Smith explains:

The exclusion strategy implemented as a right to exclude is at the core of the mechanism property uses to serve owners’ and society’s real interests. The right to exclude does not require an owner, whether it be an individual, a group, or the state, to actually exclude others; the gatekeeper can decide to include. Nor does the fact that a right to exclude follows automatically from the organization of modular things through an exclusion strategy mean that the right to exclude is absolute.

This is a strategy that has served copyright’s purpose well, especially when new technologies become popular. In 1909, Congress recognized that songwriters have the exclusive right to make mechanical reproductions of their works onto phonorecords and other mechanical devices, and recorded music has since become an integral part of many of our lives. US courts began to recognize an exclusive right to perform songs via broadcast radio in the 1920s. 2William Henslee, What’s Wrong with U.S.?: Why the United States Should Have a Public Performance Right for Sound Recordings, 13 Vanderbilt Journal of Entertainment and Technology Law 739, 754 (2011). Today, radio is a multibillion dollar industry that penetrates nearly every US household. Cable television providers were at first exempt from copyright law for retransmitting broadcast shows, but Congress changed that in 1976 3Niels Schaumann, Copyright Protection in the Cable Television Industry: Satellite Retransmission and the Passive Carrier Exemption, 51 Fordham L. Rev. 637 (1983). — this industry too has grown in size and reach since then, and original cable programming has progressed from endearingly awkward cable access shows to programs like Breaking Bad, Louie, and Burn Notice.

Granted, in the case of mechanical reproductions and cable retransmission of broadcast programs, US law has created compulsory licenses that allow certain uses, coupled with compensation set by statute, without requiring permission from the copyright holder. The existence of such compulsory licenses doesn’t negate what I’m saying. As mentioned above, there is no value in exclusion itself, and the right doesn’t require actual exclusion; compulsory licenses demonstrate that there are times when there are certain values — e.g., lowered transaction costs, 4Copyrighted Broadcast Programming on the Internet, Statement of Marybeth Peters, The Register of Copyrights, before the Subcommittee on Courts and Intellectual Property Committee on the Judiciary, US House of Representatives, 106th Congress (June 15, 2000): “For the cable license, Congress believed that the transaction costs associated with a cable operator and copyright owners bargaining for separate licenses to all television broadcast programs retransmitted by the cable operator were too high to make the operation of the cable system practical.” concerns about monopoly 5Music Licensing Reform, Statement of Marybeth Peters, The Register of Copyrights, before the Subcommittee on Intellectual Property, Committee on the Judiciary, US Senate, 109th Congress (July 12, 2005): “due to concerns about potential monopolistic behavior, Congress also created a compulsory license to allow anyone to make and distribute a mechanical reproduction of a nondramatic musical work without the consent of the copyright owner .” — that are better served through alternatives to exclusion.

Creators, technology companies, and the general public have all benefitted from this framework that starts with exclusivity. Continuing to secure copyright’s exclusive rights is important to further the goals of copyright. In the words of the US Copyright Clause’s author James Madison, “[t]he public good fully coincides … with the claims of individuals” 6The Federalist No. 43. — or, as Register of Copyrights Maria Pallante stated recently, copyright is “for the author first and the nation second.” To say otherwise is to confuse copyright’s exclusivity as an ends rather than a means, setting it up as a strawman to strike down in an underdeveloped view of the nature of copyright.

Copyrighted Broadcast Programming on the Internet, Statement of Marybeth Peters, The Register of Copyrights, before the Subcommittee on Courts and Intellectual Property Committee on the Judiciary, US House of Representatives, 106th Congress (June 15, 2000): “For the cable license, Congress believed that the transaction costs associated with a cable operator and copyright owners bargaining for separate licenses to all television broadcast programs retransmitted by the cable operator were too high to make the operation of the cable system practical.”

5.

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Music Licensing Reform, Statement of Marybeth Peters, The Register of Copyrights, before the Subcommittee on Intellectual Property, Committee on the Judiciary, US Senate, 109th Congress (July 12, 2005): “due to concerns about potential monopolistic behavior, Congress also created a compulsory license to allow anyone to make and distribute a mechanical reproduction of a nondramatic musical work without the consent of the copyright owner .”

‘South Park’ Wins ‘What What (in the Butt)’ Legal Fight — The Seventh Circuit affirmed a lower court’s ruling that a South Park parody of the viral video “What What (in the Butt)” was fair use. What’s notable here is that the ruling was made on a motion to dismiss, before any discovery had commenced. The court’s ruling could lower the risk of litigation for legitimate fair users.

Getting Paid is a Moral Right, too! Why Creative Commons Gets it Wrong — The 1709 Blog presents this compelling look at Creative Commons licensing from legal scholar Dr. Mira T. Sundara Rajan. “In the United States, artists who want moral rights can opt for licensing their work through Creative Commons, but (unless they choose to license only a few select works to benefit from ‘free advertising’), they cannot expect to enjoy moral rights protection and earn money from their work at the same time. Welcome to the future?”

Scenes From The Pounding Heart Of A Tech Bubble — Buzzfeed’s Jack Stuef paints a picture of TechCrunch Disrupt NYC, New York City’s largest startup conference, that is bustling with absurdity. “‘We’re the original tech vertical,’ he said, then paused. ‘It’s an ironic thing because it is disruptive,’ he continued, staring unblinkingly into my eyes. I still don’t know what that meant.”

Artists, Know Thy Enemy – Who’s Ripping You Off and How… — Another great post from The Trichordist: “Let’s be clear about this, our battle is with businesses ripping us off by illegally exploiting our work for profit. This is not about our fans. It is about commercial companies in the businesses of profiting from our work, paying us nothing and then telling us to blame our fans.”

B&N: DOJ e-book suit endangers consumers, bookstores and copyrighted expression — Barnes and Noble weighs in on the Fed’s anti-trust suit involving e-books. According to PaidContent, “B&N argues that the proposed settlement is a government action ‘analogous to a cartel imposing a detailed business model on publishers.’ It would transform the DOJ ‘into a regulator’ and would ‘injure innocent third parties, including Barnes & Noble, independent bookstores, authors, and non-defendant publishers; hurt competition in an emerging industry; and ultimately harm consumers.'”

BitTorrent Admin Jailed For Tax Evasion On Site Donations — “The former administrator of the PowerBits private tracker was found guilty of copyright infringement and tax and accounting fraud after he failed to register donations provided by the site’s users as income with the tax authorities. He will serve one year in prison.” Perhaps Sweden needs to innovate instead of relying on its outdated business model of “collecting taxes.”

Guest Post: Is Copyright a threat to Free Speech? by David Newhoff — Filmmaker Newhoff provides this provocative article arguing that, rather than clashing, copyright and free speech complement each other. “If the U.S. is founded on one idea above all others, it’s that there is a link between free enterprise and freedom itself. Yes, this ideology has its flaws, and we’re still living through the economic woes of certain kinds of enterprise run amok; but let’s not throw out the baby with the bankers just yet.”

How Hulu’s Battleground changed the web TV ballgame — A great profile from GigaOm’s Janko Roettgers on Hulu’s first original scripted series and its implications for the future of online TV. I’d add that much of the show’s initial success is due to the fact that it is very, very good. Worth checking out.

How Phil DeFranco plans to save YouTube — Also from Roettgers: “So is all well in YouTube land? Not exactly. ‘Smaller YouTubers need to evolve, because it is a very toxic world out there,’ DeFranco told me. It’s hard for up-and-coming producers to get noticed at all, he said. And when they finally catch a lucky break and one of their videos goes viral, they’re bound to get offers of help from all the wrong places.”

Exclusive: FilesTube Comments on Google Transparency Report — Cyberlocker search engine FilesTube topped the list of targetted domains in Google’s transparency report, clocking in over 400,000 DMCA requests to remove URL’s from Google over the past year. According to statements it made to ZeroPaid, FilesTube itself receives 60,000 DMCA notices a day.

The Meme Generation — Matt Labash of the Weekly Standard presents a scathing, humorous, and thought-provoking writeup of the third annual ROFLcon, a conference for the “worker bees, Internet-famous celebrities, and leading intellectual lights of the universe known as Web 2.0, which is forever, reverentially, and loudly in the business of congratulating itself.” Highly recommended, with such gems from Labash like this: “True, as the tech triumphalists often crow, everyone now has a voice. It’s become an article of faith that this is an advance we should all be grateful for. Yet about 50 percent of those voices, at any given moment, seem to want to say nothing more than, ‘You suck.'”

Google’s “Transparency” Masquerade — Ethical Fan offers its thoughts on Google’s Transparency Report. “The picture being painted by the anti-copyright press is that Google is doing their part to help copyright owners. Nothing could be further from the truth.”

About

Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently VP Legal Policy and Copyright Counsel at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.